William D. Araiza

On his book Animus: A Short Introduction to Bias in the Law

Cover Interview of June 13, 2017

A close-up

If a just-browsing reader were to open the book I would like
them to begin reading the Introduction. The Introduction seeks to explain why
the animus concept is so important, but also why our common-sense understanding
of the term is insufficient for purposes of constitutional law.

The Introduction is short. It begins with a simple (indeed,
simplistic) set of three government actions that treat people unequally, and
asks, Sesame Street-style, which of them is unlike the other two. The book
provides the answer: one of those situations, a city council’s decision to deny
a zoning variance to a proposed group home for intellectually disabled persons
based on constituents’ dislike of those persons, is based in animus. Indeed,
this situation reflects the facts of the City of Cleburne case that has
played an important role in the development of animus doctrine.

Identifying this situation as one where the government
action was motivated by animus provides an opening to the idea of animus. In
particular, it will be intuitively obvious to many readers that the city’s
action seems unconstitutional. In turn, that insight opens the door to
realizing that the framers of the Constitution had a similar attitude. Framers
such as Madison understood that groups of persons (what Madison referred to as “factions”)
may hijack government for their own private ends—that is, to accomplish goals
unrelated to the public good. Such conduct distantly, but distinctly, echoes
the idea of animus. After all, as the book explains, animus essentially amounts
to a government action to disadvantage a group for no legitimate reason.

With animus thus understood as an instinctive constitutional
wrong, and as one that American constitutional law has always condemned, the
question then becomes what the concept means. The Introduction explains that
the intuitive understanding of animus as subjective bad intent doesn’t easily
fit the context of government action. Government action is often
institutional—the action of a legislature or an administrative agency, for
example. Thus, it is difficult to translate into legal doctrine our intuitional
understanding of animus as subjective bad intent. The book promises to provide
an understanding of animus that is both workable as legal doctrine and faithful
to the intuition readers had when they confronted the example of animus on the
first page.

In sum, then, the Introduction identifies animus as an issue
that Americans should care about, explains (briefly) why the issue is complex,
and promises to create a doctrine that courts can use to guard against it. As such,
I hope it hooks readers to come along on the book’s exploration of animus.

The dominant premise in evolution and economics is that a person is being loyal to natural law if he or she attends to self’s interest and welfare before being concerned with the needs and demands of family or community. The public does not realize that this statement is not an established scientific principle but an ethical preference. Nonetheless, this belief has created a moral confusion among North Americans and Europeans because the evolution of our species was accompanied by the disposition to worry about kin and the collectives to which one belongs.Jerome Kagan, Interview of September 17, 2009

[T]he Holocaust transformed our whole way of thinking about war and heroism. War is no longer a proving ground for heroism in the same way it used to be. Instead, war now is something that we must avoid at all costs—because genocides often take place under the cover of war. We are no longer all potential soldiers (though we are that too), but we are all potential victims of the traumas war creates. This, at least, is one important development in the way Western populations envision war, even if it does not always predominate in the thinking of our political leaders.Carolyn J. Dean, Interview of February 01, 2011